It has mostly lived in obscurity until now because, in the last 29 years, the DOJ—whatever its flaws—had not placed itself at the service of a president a president who has communicated a desire to seek vengeance upon his political foes.
The Hyde Amendment was born of outrage over the prolonged criminal prosecution of then-Rep. Joe McDade (R-PA), who was charged in a long-running corruption case and ultimately acquitted. Congress responded by giving courts power to reimburse prevailing defendants in truly abusive cases. Courts have interpreted the statute narrowly. It sets a very high bar. It is not enough that prosecutors cut corners or engage in misconduct along the way. The case itself has to be fundamentally unjustified from the start. In United States v. Shaygan, for example, prosecutors hid evidence, failed to turn over key Drug Enforcement Administration (DEA) reports, ran a secret side investigation targeting defense counsel, and were rebuked by the trial court—but the 11th Circuit still threw out the fee award because the underlying charges had an evidentiary basis. Hyde applies when the prosecution is rotten end to end—not when a legitimate prosecution is handled badly.
But the defining feature of the second Trump administration’s DOJ is not isolated misconduct, though there is plenty of that. It is that the administration has shattered the independence of DOJ’s prosecutions altogether. Targets are identified first. Legal theories are built afterward. Trump has publicly demanded prosecutions of specific political opponents and labeled them criminals in advance. Former Attorney General Pam Bondi made clear that the department is aligned with that approach, repeatedly signaling that pursuing these cases was a priority.
Courts are already signaling general concern with the DOJ’s current course of conduct. Judges have found the DOJ’s representations “so disingenuous that the Court is left with little confidence that the defense can be trusted to tell the truth about anything,” and in at least one case concluded that the government had effectively forfeited the presumption of regularity—the default judicial assumption that the government is acting properly and honestly—altogether.
Trump’s politicized DOJ has taken aim at a wide variety of those perceived to be political or legal opponents of the president:
- Former FBI Director James Comey was indicted in April by a grand jury for posting a photo of seashells spelling “8647” on Instagram. The indictment followed career prosecutors reportedly declining to bring charges and a federal court dismissing an earlier indictment after finding that the Trump-installed prosecutor lacked lawful authority.
- New York Attorney General Letitia James has been targeted with fraud charges that were dismissed by a federal court and has also seen subpoenas thrown out and prosecutors disqualified by federal judges in related proceedings.
In both cases, the Trump administration may still pursue the matters. These efforts share the same structure: public presidential demands, legal theories that are trumped-up in more ways than one, and repeated collapses under judicial scrutiny.
Most prominent recently is the DOJ’s pursuit of Sen. Mark Kelly (D-AZ), Sen. Elissa Slotkin (D-MI), Rep. Jason Crow (D-CO), Rep. Maggie Goodlander (D-NH), Rep. Chris Deluzio (D-PA), and Rep. Chrissy Houlahan (D-PA) for cutting a video accurately telling service members that they do not have to obey unlawful orders. The latest development is that a D.C. grand jury refused to indict the six lawmakers, but they remain in legal and financial jeopardy as the Trump administration continues to press the matter.
Those failed indictment attempts do not yet trigger a Hyde Amendment payout; it generally takes an actual prosecution—and a win by the defendant—for Hyde to apply.
But these are exactly the kinds of cases where Hyde could be applicable; in the case of the members of Congress and the video, the prosecutors’ legal theory was absurd from the start. The lawmakers were not urging insubordination; they were accurately stating black-letter military law. The move to charge followed the president’s publicly labeling the conduct “seditious” and demanding prosecution. If the DOJ returns, secures indictments, and then loses, it would look very much like a prosecution driven by an angry president and not the law—one that never should have been brought in the first place.
For decades, the statute has remained on the shelf, largely unused, and rarely successful when used, because federal prosecutions—whatever their flaws—were not openly driven by presidential retaliation. But if the above matters proceed into full criminal prosecutions and then collapse, as early signs suggest they may, courts may be forced to confront what has so far been obvious in the public record: These are not ordinary cases that went wrong, but prosecutions that were wrong from the beginning.
If these cases collapse, the government may have to pay—literally—for weaponizing the law.